ACLU In Supreme Court Today Arguing Former A.G. Ashcroft Should Be Held Accountable For Wrongful Arrest And Detention Of U.S. Citizen

NEW YORK — The American Civil Liberties Union argued before the United States Supreme Court today that former Attorney General John Ashcroft should be held responsible for the wrongful arrest and detention of a U.S. citizen under the material witness law. The ACLU brought the case against Ashcroft in 2005 on behalf of Abdullah al-Kidd, a U.S. citizen who was improperly arrested and detained in 2003 as a material witness. The ACLU’s lawsuit charges that al-Kidd’s arrest was part of a pattern of pretextual material witness arrests that occurred after September 11, pursuant to a nationwide policy instituted by Ashcroft.

“In America, we don’t just arrest people and lock them up without probable cause to believe they violated the law,” said Lee Gelernt, Deputy Director of the ACLU Immigrants’ Rights Project, who argued the case on behalf of al-Kidd. “The government officials who turned that unlawful practice into official policy — in clear violation of the Constitution — must be held accountable.”

The government sought al-Kidd’s arrest as a witness in the case of Sami Al-Hussayen, who had been indicted for visa fraud and making false statements to the government. Al-Kidd was held for 16 days in jails in Virginia, Oklahoma and Idaho, where he was placed in high-security wings with convicted criminals, strip-searched and routinely shackled. He was eventually released from detention, but was placed under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers. Al-Kidd lived under these conditions for more than a year even though he was never called to testify or charged with a crime.

The U.S. Court of Appeals for the Ninth Circuit ruled in September 2009 that the federal material witness statute cannot be used to preventively detain and investigate suspects for whom the government lacks probable cause of wrongdoing. The ruling also held that Ashcroft does not have immunity in the case and can be held personally liable after trial for the wrongful detention of al-Kidd. Ashcroft appealed that ruling to the Supreme Court.

“The appeals court made it clear that former Attorney General Ashcroft can be held responsible if he instituted a policy of improperly misusing the material witness statute as a preventive detention tool,” said Steven R. Shapiro, Legal Director of the ACLU. “The appeals court decision was correct and it should be upheld by the Supreme Court.”

In addition to Gelernt and Shapiro, attorneys on the case are Lucas Guttentag, Tanaz Moghadam, Michael K.T. Tan and Katherine Desormeau of the ACLU; Lea Cooper of the ACLU of Idaho; Michael J. Wishnie; Cynthia J. Woolley of the Law Offices of Cynthia J. Wolley, PLLC; and R. Keith Roark of the Roark Law Firm, LLP.